December 20, 2004

A Look Ahead - Copyright in 8 Years Revisited

I began this semester commenting on a list compiled by University of Virginia Law Professor Timothy Wu that explored several possibilities of where copyright may be headed in the future. The list contained six theories, all of which have been better clarified through discussions and posts during the semester.

First, Professor Wu wonders if copyright will be primarily a criminal regime; it seems as if criminal punishment is thus far the only effective means of dealing with copyright infringement, and even then it lacks a "fear factor" that is necessary to enforce - and put a stop to - copyright violations. There is no real threat of being punished! Unless you are the one in a thousand net user who is hording millions of MP3 files on your personal computer, the chance of being caught for having downloaded a couple of your favorite songs is slim to none. Earlier this year, I noted that the time and money of our law enforcement agents and taxpayers is not best spent fighting to protect copyright law, and I still stand by that statement. However, a "criminal regime" might be the only effective way to end copyright infringement in the future, provided an improved method of identifying and prosecuting infringers becomes the norm.

This incorporates the next item on Wu's list: a focus on control of the hardware and software to prevent infringement. Rather than relying on the government to locate infringers and prosecute them (and finding each and every infringer, considering the broad definition now applied to the term, is impossible), it would be a much simpler and more efficient means of law enforcement to incorporate the anti-infringement technology into the copyrighted item itself. I commented that this proposition seemed impossible considering the rate and which hackers can always find ways to "crack the code" and frustrate copyright law. However, if copyright technology can always stay one step ahead, and continually improve itself, it can actually frustrate the hackers, rather than the other way around.

The idea of protecting the revenue streams of DVD's, CD's, software CD's and video game CD's and nothing else is completely unrealistic. This is not the direction copyright is headed. If nothing else, this semester has taught me that technology is constantly improving, and what was the latest and most modern item today is obsolete tomorrow. Copyright cannot focus on protecting technology of the past - it must focus on creating technology of the future. A backwards looking future will only result in copyright falling out of step with all the possible means of infringement. This falls in line with my beliefs from the start of the semester - it seems inevitable that something bigger and better will be on the market in 2012 making all of the above items nothing but a memory. And those items are what copyright law should be looking to protect.

Alternative compensation systems outside of the United States is an idea that is hard to side with, one way or the other. It certainly does not seem a realistic future for copyright, however. Compensation is the ultimate reason we are so strongly opposed to copyright infringers - people who steal music, movies and video games off their computers while leaving the creators of such mediums without their expected profit. While this is a problem and will most likely continue to be so in 8 years, several artists have come to terms with file sharing and have embraced it, rather than fought fervently to prevent it. This might actually be the most effective means to curb copyright infringement. If artists and producers approach the problem with an attitude of "how can we fix this so both sides will benefit?" rather than the current attitude of shutting down all file sharing systems (and turning fans off to their music, movies, etc), copyright laws will be less of a hassle to enforce.

Earlier in the year, I summed up by saying that to be effective, copyright laws need to be updated constantly to keep up with technology if there is to be any chance at curbing copyright infringement. This still holds true - technology is a fluid industry, always improving on itself. Copyright laws need to follow suit. However, meshing the two together into infringement-free technology is a proposition that seems mutually beneficial.

Copyright violations expand much further than just file sharing; they touch almost every aspect of modern life. There are so many potential violations that trying to individually enforce each and every one is pointless. The future of copyright must take this in stride, and have a forward looking attitude with regards to its infringement prosecution. No one can really say where copyright will be in 8 years, but this semester has opened my eyes to the multitude of possibilities in store for the future, both good and bad. Rather than worrying about how to stop infringers, thus hindering the development of copyright, we should better our technology and copyright laws, and then concern ourselves with potential violations.